Kerala High Court
Martin Philip vs The Geologist-Kottayam on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
WP(C) NO. 39798 OF 2022
PETITIONERS:
1 MARTIN PHILIP,AGED 52 YEARS
S/O.PHILIP, URUMBIL, KOZHUVANAL.P.O,
KOTTAYAM-686573.
2 N.M.JOHN, AGED 70 YEARS
S/O.MICHAEL, NADUVILEKOLLIYIL, KAVANA,
VAZHAKKULAM.P.O, MUVATTUPUZHA,
ERNAKULAM DISTRICT, PIN-686570.
BY ADVS.
LIJI.J.VADAKEDOM
TOM E. JACOB
REXY ELIZABETH THOMAS
ATHUL V. VADAKKEDOM
RESPONDENTS:
1 THE GEOLOGIST-KOTTAYAM
OFFICE OF THE GEOLOGY DEPARTMENT,
COLLECTORATE, KOTTAYAM-686002.
2 THE VILLAGE OFFICER,
AKALAKKUNNAM VILLAGE, MANALUNKAL.P.O,
POOVATHILAPPU, KOZHUVANAL, KOTTAYAM-686503.
3 THE TAHSILDAR-KOTTAYAM TALUK,
TALUK OFFICE, KOTTAYAM-686001.
4 THE DISTRICT COLLECTOR,
OFFICE OF THE DISTRICT COLLECTOR,
COLLECTORATE, KOTTAYAM-686002.
BY SR.GP B.UNNIKRISHNA KAIMAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.39798 of 2022 2
VIJU ABRAHAM, J.
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W.P (C) No.39798 of 2022
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Dated this the 4th day of April, 2024
JUDGMENT
The above writ petition is filed challenging Exts.P7 and P8.
2. Brief facts necessary for the disposal of the writ petition are as
follows: 1st petitioner has obtained certain extent of land as per Ext.P1
settlement deed. Since major portion of the land had rock formation it
has become impossible for him to plant the property with rubber trees.
2nd petitioner who is the contractor doing the work of constructing sea
wall at Ottamassery in Cherthala has obtained Ext.P3 work order in this
regard and when the 2nd petitioner was contacted he agreed to to
remove the granite available at the property of the 1 st petitioner.
Petitioners submit that the procurement of granite is being done either
using excavator as a single piece or by breaking using chemicals and
no explosives are being used in the process of procuring the granite. It
is submitted that by Ext.P4 transit pass was issued to the 1 st petitioner
for removing a quantity of 3475 metric ton. Since the original time
granted as per Ext.P4 expired, the same was extended by Ext.P5.
Thereafter on 20.07.2022 the 1st petitioner had obtained further
extension for transportation of granite. While so Ext.P7 stop memo has
been issued by the 2nd respondent alleging that granite has been
extracted using explosives and vehicles were also seized which were
later on released by the jurisdictional Magistrate Court. Petitioners
submit that Ext.P7 has been issued on a wrong information by certain
persons and that no explosives are being used. Further it is submitted
that no evidence has been collected by the 2 nd respondent to show that
any explosives were used by the petitioners while extracting the granite.
Thereupon the 1st petitioner has filed Ext.P9 complaint before the 4 th
respondent District Collector. Alleging illegal extraction of granite fine
was imposed which was remitted as is evident from Ext.P10. Thereafter
Ext.P11 complaint was also preferred before the Government. In spite of
the same Ext.P7 stop memo was not withdrawn. It is in the said
circumstance that the petitioners have approached this Court.
3. A counter affidavit has been filed by the 1st respondent Geologist
wherein it is stated that site inspection was conducted on 18.02.2022
and it was reported that the petitioners intended to excavate granite
building stone boulders, but the quantity of building stone boulders to be
excavated is not marked and quantified in the building plan issued by
the Secretary of the Grama Panchayat and that the building stone
boulders were found embedded within the ordinary earth at a depth of 2-
3 metres from the surface and quarrying has to be done in order to take
out the mineral for which the petitioner has to apply for permission under
Rule 104 of the Kerala Minor Mineral Concession Rules, 2015. It is while
so the District Collector forwarded the request of one Sri.N.M.John, 2 nd
petitioner herein, to grant permission for transporting granite building
stone boulders for urgent anti-sea erosion work and consequent to the
same the site was inspected on 12.07.2022 from the office of the 1 st
respondent and reported that 3475 metric ton granite has been stocked
in the site. The District Collector in his capacity as the Chairman of the
District Disaster Management Authority, Kottayam as per Ext.R1(a)
order dated 12.07.2022 directed to issue transit passes for granite
building stone stocked in the site on realising royalty and it is specifically
mentioned therein that quarrying shall not be undertaken for the same.
Based on the same permission was granted as per Ext.R1(b) wherein a
specific condition was imposed as condition no.6 that no quarrying
should be done based on the permission. While so the District Collector,
Kottayam informed that four vehicles including three excavators and a
jack hammer has been taken into custody by the Village Officer for illicit
quarrying using explosives in the said property. Later on the offence was
compounded and the vehicles were released on remitting Rs.25,000/-
for each vehicle. Even though the matter was compounded, they have
not yet compounded the offence of illicit quarrying. It is further stated
that the 1st petitioner has violated Exts.R1(a) and (b) orders issued by
the District Collector and the Geologist by quarrying granite building
stone using explosives and machinery including JCB, hitachi and
compressor. The usage of abovesaid machineries makes it clear that
the petitioners were conducting extensive quarrying operation in the
guise of the aforesaid permission to remove the existing granite which
has been stocked in the property.
4. A statement has been filed by the 3rd respondent also wherein it is
stated that several complaints were received informing that extensive
mining activity is being carried out in the site and explosives are being
used for the same and it is in the said circumstance that the stop memo
was issued to stop the illegal mining activity carried out under the guise
of transit pass. The evidence so far collected would reveal that the
petitioners were engaged in illegal quarrying of granite stones without
having a valid quarrying permit. The presence of the vehicles including
the jack hammer and excavator revealed that there is illegal mining of
granite from the property.
5. I have heard the rival contentions of both sides.
6. The only reason stated in Ext.P7 stop memo is that there is
excavation of granite using explosives and thereupon the stop memo
was issued. The respondents have no case that any enquiry has been
conducted into the allegation of use of explosives in the property and
further the matter has not been intimated to the police even though the
authorities are bound to inform the police in case of any violation of the
provisions of the Explosives Act and Rules. Another aspect to be noted
is that even though there is no conclusive proof regarding the use of
explosives which is stated to be the reason for issuance of Ext.P7 stop
memo, the allegation against the petitioners even going by Ext.P7 stop
memo is that the petitioners are extracting granite using explosives. The
question for consideration is as to whether there is illegal extraction of
granite stone by the petitioners in the guise of Exts.P4 and P5
movement permits granted to them. A perusal of Ext.R1(a) order issued
by the District Collector in his capacity as the Chairman of the District
Disaster Management Authority on the basis of the report of the
Geologist that the property of the 1st petitioner has been levelled and
large quantity of building stone boulders are stocked in the property and
taking into consideration the said report permission was granted to the
Geologist to issue necessary passes only for removal of the already
stocked granite stone boulders in the property without permitting any
quarrying operation. It is based on Ext.R1(a) that Exts.R1(b) and (c)
proceedings were initiated by the Geologist to remove the already
stocked granite stone boulders in the property with the specific rider that
in the guise of Ext.R1(b) (Ext.P4) no quarrying operation shall be
conducted by the petitioners. A perusal of Ext.P5 also would reveal that
the permission was granted on such stringent condition. A perusal of
Ext.P4 also would reveal that though the 1 st petitioner has submitted an
application for construction of a building and for removal of granite stone
in the property the quantity of granite to be removed is not stated in the
plan and the 1st petitioner was directed to produce necessary
documents in this regard. But in the meanwhile the District Collector has
issued an order permitting the Geologist to issue necessary passes for
removal of existing stocked granite stone boulders in the property and it
is based on that Ext.P7 stop memo was issued. In the above facts and
circumstances the petitioner is entitled to remove only 3475 metric ton of
granite stone boulders which is already removed and stocked in the
property of the 1st petitioner. Ext.P4 is with a specific rider that no
quarrying operation other than removing the already excavated granite
stone boulders shall be undertaken by the petitioners. The case of the
authorities going by the counter affidavit filed by the 1 st respondent as
well as the statement filed by the 3rd respondent is that the petitioners
have conducted the quarrying operation in the guise of Ext.P4. In view
of the above, though the use of explosives could not be conclusively
proved by the respondents, I am of the view that before vacating Ext.P7
stop memo the aspect as to whether the petitioners have conducted
quarrying operation need to be looked into by the 4 th respondent District
Collector before whom Exts.P9 request has been preferred by the 1 st
petitioner.
Therefore the above writ petition is disposed of with a direction to
the 4th respondent to take up Ext.P9 request submitted by the 1st
petitioner and to get necessary report from respondents 1 and 3 and
also from the local authority concerned and conduct an enquiry into the
matter as to whether any quarrying activity was conducted by the
petitioners in the guise of Ext.P4 permission granted or the petitioners
were only removing 3475 metric ton of granite stone boulders which is
stocked in the property by the petitioners earlier for which permission
has been granted by the District Collector as per Ext.R1(a) proceedings
dated 12.07.2022. Fresh order shall be passed by the 4th respondent
District Collector based on Ext.P9 request made by the 1 st petitioner
subject to the outcome of the findings by the 4 th respondent in the said
enquiry and also regarding recalling of Ext.P7 stop memo. The
proceedings shall be finalised at the earliest with notice to the
petitioners, at any rate, within an outer limit of one month from the date
of receipt of a copy of the judgment.
With the abovesaid directions the writ petition is disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 39798/2022
PETITIONER EXHIBITS
Exhibit P1 THE COPY OF THE SETTLEMENT DEED NO.
745/2016 OF THE SRO, KOZHUVANAL AT
21/12/16
Exhibit P2 FOUR PHOTOGRAPHS OF THE PROPERTY OF THE
1ST PETITIONER
Exhibit P3 THE COPY OF THE WORK ORDER DATED
4.7.2022 ISSUED FROM THE IRRIGATION
DEPARTMENT
Exhibit P4 THE COPY OF THE PROCEEDINGS NO.
352/2022-23/2867/DOY/ML/2021 DATED
13.7.2022 ISSUED BY THE 1ST RESPONDENT
Exhibit P5 THE COPY OF THE PROCEEDINGS NO.
356/2022-23/2867/DOY/ML/2021 DATED
16.7.2022 ISSUED BY THE 1ST RESPONDENT
Exhibit P6 THE COPY OF THE MINERAL TRANSIT PASS
DATED 13.7.2022 ISSUED IN THE NAME OF
1ST PETITIONER IN FORM O(A)
Exhibit P6(A) THE COPY OF THE MINERAL TRANSIT PASS
DATED 17.7.2022 IN FORM O(A)
Exhibit P7 THE COPY OF THE STOP MEMO DATED
20.07.2022 ISSUED BY THE 2ND RESPONDENT
TO THE 1STN PETITIONER
Exhibit P8 THE COPY OF THE MAHAZAR DATED 20.7.2022
PREPARED BY THE 2ND RESPONDENT
Exhibit P9 THE COPY OF THE COMPLAINT DATED
8.8.2022 SUBMITTED BY THE 1ST
PETITIONER
Exhibit P10 THE COPY OF THE CHALLAN (4 IN NO.)
DATED 23/8/2022 FOR REMITTANCE OF A
TOTAL AMOUNT OF RS.ONE LAKH WITH
RESPECT TO THE 4 VEHICLE SEIZED
Exhibit P11 THE COPY OF THE REPRESENTATION DATED
10.11.2022 SUBMITTED BY THE 1ST
PETITIONER TO THE HONOURABLE MINISTER
FOR REVENUE.
RESPONDENT EXHIBITS
EXHIBIT R1(a)-TRUE
COPY OF EXHIBIT EXHIBIT R1(a)-TRUE COPY OF EXHIBIT
R1(A) ORDER No. R1(a) ORDER No. DM1. 5833/2022 DATED
DM1. 5833/2022 12.07.2022
DATED 12.07.2022
EXHIBIT R1(b)-TRUE
COPY OF EXHIBIT
EXHIBIT R1(b)-TRUE COPY OF EXHIBIT
R1(b)- ORDER No.
R1(b)- ORDER No.
352/2022-
352/2022-2023/2867/DOY/ML/2021 DATED
2023/2867/DOY/ML/2
13.07.2022
021 DATED
13.07.2022
EXHIBIT R1(c)-TRUE
COPY OF EXHIBIT
EXHIBIT R1(c)-TRUE COPY OF EXHIBIT
R1(c)-COPIES OF
R1(c)-COPIES OF REQUEST OF VEHICLE
REQUEST OF VEHICLE
OWNERS DATED 16/8/2022
OWNERS DATED
16/8/2022
